A blog about Marinwood-Lucas Valley and the Marin Housing Element, politics, economics and social policy. The MOST DANGEROUS BLOG in Marinwood-Lucas Valley.

Friday, July 1, 2016

Did the Marinwood CSD break the Law?

How many Willow Flycatchers died during the illegal removal of habitat on June 17. 2016?

The unfortunate and hasty removal of blackberry bushes in Marinwood Park has many residents upset. The bushes have been treasured for decades by local families for gathering tasty berries each summer. It is also the home of the Southwestern Willow Flycatcher which is under the protection of the Endangered Species Act. It actively nests from May to September and is also protected under the Migratory Bird Treat Act.

1000 square feet of bushes were removed in Marinwood Park. The bush line extended to the nature sign post.

Aside from the admission that removal of the bushes was "too extreme", Marinwood CSD manager Eric Driekosen has denied the request for the restoration of the damage, create policy to prevent re-occurrence or train staff in the proper management of nature areas within the park. In a letter received yesterday, he told me that "the matter is resolved".

Several Federal laws appear to have been broken. Park and Open space care is one of the key functions of the Marinwood CSD. If you care about keeping our nature areas beautiful and a healthy environment for all species, please write edreikosen@marinwood.org today.

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Information about the Migratory Bird Treaty Act and the Southwest Willow Flycatcher.

Almost all birds, including their nests and eggs native to the United States are protected under the
Migratory Bird Treaty Act (MBTA). Protection is not limited to only individual birds or species that
migrate. In this fact sheet, “bird” refers to any bird species protected by the MBTA. A list of protected
species is published in the Code of Federal Regulations at 50 CFR 10.13. You can view the list at:
www.fws.gov/permits/SpeciesLists/SpeciesLists.html.

4. Do I need a federal permit to destroy bird nest?
A permit is not needed to destroy inactive bird nests, provided the nest is destroyed and not kept. An
inactive bird nest is one without eggs or chicks present. The Nest Destruction Migratory Bird Permit
Memorandum (MBPM-2; April 15, 2003) provides additional guidance on nest destruction
(http://www.fws.gov/policy/m0208.pdf).

A permit is required to destroy an active bird nest (one with eggs or chicks present). A permit is also
required to disturb or destroy nests of bald eagles or golden eagles and federally threatened or endangered
species. A list of threatened or endangered species can be found at
www.fws.gov/permits/SpeciesLists/SpeciesLists.html.

Willow Flycatchers nest from May to September in thick bushes along water banks. A huge patch (800sf+ ) of blackberries along Miller Creek in Marinwood Park were removed June 17th without permits. The Willow Flycatcher is protected under the Endangered Species Act and the Migratory Bird Treaty Act.

The U.S. Fish and Wildlife Service published today a final rule designating 737miles of waters within the 100-year floodplain in California [Editor's Note: This includes most areas within 100 feet of Miller Creek], Arizona, Nevada, Utah, and New Mexico as critical habitat for an endangered migratory bird, the southwestern willow flycatcher. The designation identifies the stream- and lake-edge habitats that are believed essential to help recover the species.

Impacts associated for all flycatcher conservation efforts in the proposed designated areas, not just those exclusively associated with habitat designation, are estimated to range from $29.2 million to $39.5 million annually, and include costs associated with the listing of the species under the Endangered Species Act for the designated areas.

The final designation is a 53 percent reduction in river miles and a 68 percent reduction in acreage from a proposal prepared last year. A list of exclusions follows.

"While a few areas were excluded because they were not essential habitats, most of the areas are already protected under some form of agreements," said Larry Bell, acting Deputy Regional Director of the Services Southwest Region. "We do not add the designation to those places where we are assured the birds habitat is being enhanced by positive conservation measures."

Many areas identified as eligible for designation were excluded from final critical habitat designation as they are already protected by conservation management plans. There are over sixteen conservation plans already established to provide protections and assurances that the conservation measures for the species will be implemented and effective.

"Information supplied by individuals and groups during the comment period was essential in evaluating and finalizing critical habitat areas," said Bell.

Critical habitat was designated along the streams, rivers, wetlands and reservoirs. The 5 ¾-inch flycatcher builds nests in the dense vegetation lining wet areas in the arid Southwest. It breeds and rears its chicks in late spring through the summer in the United States. The flycatcher migrates to Mexico, Central and possibly northern South America for winter.

Critical habitat is a term in the Endangered Species Act. It identifies geographic areas that contain features essential for the conservation of a threatened or endangered species and that may require special management considerations or protection. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. It does not allow government or public access to private lands.

The critical habitat designation includes locations that support ten or more flycatcher territories or which provide opportunities for nesting birds to access other flycatcher populations. Dispersing to other territories ensures that birds can expand into other locales and maintain genetic flow among territories, providing overall population stability. The locations designation also provides migration stopover habitats and habitat for non-breeding and dispersing southwestern willow flycatchers.

The flycatcher was added to the endangered species list in 1995 as its populations declined due to habitat loss resulting from river and water management practices; agricultural, residential and urban development; recreation; and livestock and wild, hoofed animals overgrazing in breeding habitat; as well as the threat of the expanded range of the cowbird, which parasitizes songbird nests.

From the above link on the Marin County Parks website you will find that thick brush along Miller Creek is the IDEAL nesting environment for the Endangered Willow Flycatcher and it is protected under law. I am surprised that you identify yourself only as "avid bird watcher" and yet you fail to mention that it is nesting season and the destruction of any nesting birds during this time is a violation of federal law. Are you not interested in the protection of natural habitat?

There is no evidence the birds were nesting their an information about a species is not evidence that they were. You link is nice information about the bird but not evidence that they were nesting by the creek.

You are right. The bushes were removed during nesting season and there is "no evidence". The mere fact that they removed them during nesting season without a permit is illegal. The MBTA applies to all species. The blackerry hedge along the riverbank is prime habitat for many species of birds including the willow flycatcher

About SaveMarinwood.org

Our community is what we make it. Marinwood-Lucas Valley is on the eve of a fateful decision by the Marin County Board of Supervisors to designate our community with 71% of all affordable housing in unincorporated Marin. If built to plan it will swell our community by 25% and add 600-1000 school children to the Dixie School District. Since affordable housing developments pay virtually no taxes, the community will have to pay for the $6 million to $10 million annually estimated to educate these children. Our total budget for the Marinwood CSD is $4.2 million dollars. Clearly it will have a severe impact on our community.

We support a fair allocation of affordable housing in our community that is sensitive to land use, is fiscally responsible, healthy for the families and integrates diversity within our community.

Unfortunately, planners, politicians and political insiders made their plans without us.